As the field of Elder Abuse litigation has grown, the medical industry has employed expert appellate counsel who, principally through the use of amicus briefs in appellate proceedings, have steered the development of the law of elder abuse into the narrow straits where it appears that actual custody of the elder is a prerequisite to liability under the Act. This effort paid off in Delaney v. Baker (1999) 20 Cal. 4th 23 where the Court held that the Act applied even to licensed health care providers, but the Court appeared to find that the Act’s intent was to address only custodial abuse.
That limitation on the scope of the Act is the issue now pending before the Supreme Court in Winn v. Pioneer Medical Group and Winn appears to be fully briefed. The decision in Winn will determine whether the Act will apply to those non-custodial defendants such as doctors, home health agencies, hospice services, etc., and to managed care entities such as medical groups and HMOs which – although having no actual custodial relationship with the elder – may engage in practices which effectively deny reasonably necessary medical care to elders.
A place where those who apply California’s Elder Abuse Act to address neglect and abuse of our parents and grandparents can support each other and explore the Elder Abuse Act’s possibilities.
I’ve seen the development of the law and the progression of judicial attitude toward elder abuse since I first began litigating elder abuse claims in 1983. When I started, no one was taking these cases and certainly no one was taking them seriously. There was no effective judicial remedy even for egregious conduct causing horrifying injury and despair. Judges openly scoffed at lawsuits alleging such conduct. With the enactment of the Elder Abuse Act in 1991, judicial attitudes slowly changed and such suits were welcomed where they had been rejected.
Over time, the plaintiff’s bar became alerted to these changes in the law and judicial attitudes. Annual conferences hosted by California Advocates for Nursing Home Reform (“CANHR”) helped to improve the level of practice by the Plaintiff’s bar. The defense bar scrambled to catch up and their level of practice has come to match or exceed the Plaintiff’s bar.
This blog is a work in progress. I hope to have a confidential space for registered participants, but until then, let’s see what we can accomplish together.